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No. 11-50948
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATE OF AMERICA Plaintiff-Appellee,
v.
MELVIN DAVID TOWNS, JR. Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, San Antonio Division
[5:10-CR-00614-XR]
BRIEF FOR APPELLANT
CYNTHIA E. ORR Bar No. 15313350 Goldstein, Goldstein & Hilley 310 S. St. Mary’s St. 29th Floor Tower Life Bldg. San Antonio, Texas 78205 210-226-1463 210-226-8367 facsimile ORAL ARGUMENT REQUESTED
i
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the judges of this Court may evaluate possible disqualification or
recusal.
COUNSEL FOR PLAINTIFF-APPELLEE, UNITED STATES OF AMERICA AT TRIAL: Charlie Strauss, Assistant United State District Attorney
601 NW Loop 410, Ste. 600 San Antonio, Texas 78216
COUNSEL FOR PLAINTIFF-APPELLEE, UNITED STATES OF AMERICA ON APPEAL: Joseph H. Gay Jr., Assistant United States Attorney
601 NW Loop 410, Ste. 600 San Antonio, Texas 78216
COUNSEL FOR DEFENDANT-APPELLANT AT TRIAL: Alfredo R. Villarreal Federal Public Defender 727 E. Cesar E. Chavez San Antonio, Texas 78206 COUNSEL FOR DEFENDANT-APPELLANT ON APPEAL: Cynthia E. Orr Goldstein, Goldstein & Hilley 310 S. St. Mary’s St. 29th Floor Tower Life Bldg. San Antonio, Texas 7820
ii
REQUEST FOR ORAL ARGUMENT
The Defendant-Appellant, Melvin “David” Towns Jr., respectfully requests
oral argument pursuant to Fed. R. App. P. 34. This appeal presents a matter of first
impression in this Court concerning whether pseudoephedrine transaction logs
required to be kept by pharmacies, strictly for law enforcement use, are testimonial
and require the testimony of the witness who prepared them to satisfy the
requirements of the Sixth Amendment as interpreted in Crawford v. Washington,
541 U.S. 36 (2004).
iii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ............................................... i
REQUST FOR ORAL ARGUMENT .............................................................. ii
TABLE OF CONTENTS ................................................................................. iii
TABLE OF CITATIONS ................................................................................. iv
STATEMENT OF JURISDICTION ................................................................ viii
STATEMENT OF THE ISSUES ..................................................................... ix
STATEMENT OF THE CASE ........................................................................ 1
STATEMENT OF FACTS ............................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................... 8
ARGUMENT ................................................................................................... 8
ISSUE ONE RESTATED ...................................................................... 8
ISSUE TWO RESTATED ...................................................................... 8
ISSUE THREE RESTATED ................................................................... 31
CONCLUSION ................................................................................................ 38
CERTIFICATE OF SERVICE ......................................................................... 39
CERTIFICATE OF COMPLIANCE ............................................................... 40
iv
INDEX OF AUTHORITIES
Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610, 2011 U.S. Lexis
4790 (2011) ................................................................................................... 6, 11, 12
Coughlin v. Capital Cement Co., 571 F.2d 290 (5th Cir. 1978) ......................... 3, 26
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ......
.......................................................................................................................... passim
Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ...... 11
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1975) ....................... 34
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314
(2009) ............................................................................................................... passim
Levine v. United States, 383 U.S. 265, 86 S.Ct. 925, 15 L.E.d.2d 737 (1966) ........ 38
Matthews v. United States, 217 F.2d 409 (5th Cir. 1954) ................................. 15, 16
Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314 (5th
Cir. 1981) ................................................................................................................. 23
Sabatino v. Curtiss National Bank, 415 F.2d 632 (5th Cir. 1969) .......................... 19
United States v. Bell, 367 F.3d 452 (5th Cir. 2004) .................................................. 9
United States v. Bermea, 30 F.3d 1539 (5th Cir.1994) ........................................... 14
United States v. Brown, 553 F.3d 768 (5th Cir. 2008) ............................................ 26
United States v. Davis, 571 F.2d 1354 (5th Cir. 1978) ........................................... 25
United States v. Dixon, 132 F.3d 192 (5th Cir. 1997) ............................................. 14
v
United States v. Garcia-Gil, 133 Fed. Appx. 102 (5th Cir. 2005) .......................... 35
United States v. Gonzales, 436 F.3d 560 (5th Cir.2006) ........................................... 9
United States v. Hardman, Case No. 2:05 CR 20044-0, 2007 WL 4144929 (W.D.
LA. 2007) ................................................................................................................ 35
United States v. Iredia, 866 F.2d 114 (5th Cir. 1989) ............................................. 26
United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996) ........................................... 24
United States v. Jackson, 636 F.3d 687 (5th Cir. 2011) .................................. 4, 9, 10
United States v. Jeffers, 329 F.3d 94 (2d Cir. 2003) ............................................... 36
United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir.1989) ................................ 14
United States v. Mashek, 606 F.3d 922 (8th Cir. 2010) .................................... 12, 13
United States v. McCormick, 54 F.3d 214 (5th Cir.1995) ......................................... 9
United States v. Melvin David Towns, Jr., Cause No. 10-CR-00614 (W.D. Tex.) .....
............................................................................................................................... viii
United States. v. Ragano, 520 F.2d 1191 (5th Cir. 1975) ....................................... 19
United States v. Ramirez, 2006 Lexis 39724 (N.D. IA. 2006) ................................ 36
United States v. Rikhiram, Case No. 10-41233, 2011 WL 6003977 (5th Cir. 2011) ..
................................................................................................................................. 37
United States v. Sherpa, 110 F.3d 656 (9th Cir. 1996) ........................................... 35
United States v. Tirado- Tirado, 563 F.3d 117 (5th Cir. 2009) ................................. 6
United States v. Tournier, 171 F.3d 64 (8th Cir. 1999) ........................................... 35
vi
United States. v. Veytia-Bravo, 603 F.2d 1187 (5th Cir. 1979) .............................. 20
United States v. Yanez Sosa, 513 F.3d 194 (5th Cir.2008) ...................................... 14
Wilson v. Zapata Off–Shore Co., 939 F.2d 260 (5th Cir.1991) ............................... 14
RULES
Fed. R. App. P. 34 ................................................................................................... 40
Fed. R. Evid. 803 ............................................................................................. passim
CONSTITUTIONAL PROVISIONS
U.S. Const. Sixth Amendment ................................................................... ix, 8, 9, 10
STATUTES
21 U.S.C. § 841 ....................................................................................................... 31
21 U.S.C. § 844 ....................................................................................................... 32
21 U.S.C. § 846 ......................................................................................................... 1
21 U.S.C. § 960 ....................................................................................................... 32
21 U.S.C. § 963 ....................................................................................................... 32
26 U.S.C. § 2811 ..................................................................................................... 16
28 U.S.C. § 1291 ................................................................................................... viii
28 U.S.C. § 3231 ................................................................................................... viii
OTHER
2005 Tex. Sess. Law Serv. Ch. 282 (H.B. 164) .......................................................... 18
2011 Tex. Sess. Law Serv. Ch. 742 (H.B. 1137) .................................................... 18
vii
2D1.1 of the Sentencing Guidelines ............................................................ 33, 34, 37
5C1.2 of the Sentencing Guidelines ............................................................ 33, 34, 27
TX. Health and Safety Code § 46.014 ............................................... 2, 15, 17, 21, 23
TX. Health and Safety Code § 486.015 ................................................................... 18
TX. Health and Safety Code § 486.0146 ........................................................... 18, 28
TX. Health and Safety Code § 486.014 ....................................................................... 2
TX. Atty. Gen. Op. GA-0564, available at 2006 WL 2773877 (2006) ...................... 2
TX. S. B. 913 ............................................................................................................... 3
401 of the Controlled Substance Act ....................................................................... 32
404 of the Controlled Substance Act ....................................................................... 32
406 of the Controlled Substance Act ...................................................................... 32
1010 of the Controlled Substances Import and Export Act ..................................... 32
1013 of the Controlled Substances Import and Export Act ..................................... 32
viii
STATEMENT OF JURISDICTION
This appeal is from the final conviction in United States v. Melvin David
Towns, Jr., Cause No. 10-CR-00614 in the United States District Court for the
Western District of Texas, San Antonio Division. Therefore, this Court has
jurisdiction for this appeal under 28 U.S.C. § 1291. The District Court had
jurisdiction of the criminal case under 28 U.S.C. § 3231. The judgment and
commitment order was entered by the District Court on October 6, 2011. The
Notice of Appeal was filed on October 6, 2011.
ix
STATEMENT OF THE ISSUES
Issue One: The Court denied Towns his constitutional right to confront witnesses against him when admitting testimonial pseudoephedrine transaction logs in evidence without the testimony of the persons who prepared the records. Issue Two: The Court abused its discretion when it admitted pseudoephedrine logs and summaries of them as business records. Issue Three: The Court’s belief that it could not even consider a safety valve reduction for Towns was erroneous.
1
STATEMENT OF THE CASE
Towns was convicted by a jury of conspiring to manufacture
methamphetamine, in violation of 21 U.S.C. § 846, on June 2, 2011. He was
sentenced on October 5, 2011 to 120 months, 5 years SR, and a special assessment
of $100. Towns filed a motion for release pending appeal below [Clerk’s Record
USCA5 240-246] which the court denied on September 13, 2011. On December
16, 2011, this Court granted Mr. Towns bond pending appeal.
STATEMENT OF THE FACTS
On July 21, 2010, Melvin “David” Towns was indicted on one count of
conspiracy to manufacture methamphetamine and to possess and distribute
pseudoephedrine, knowing it would be used to manufacture methamphetamine.
Clerk’s Record USCA5 15-18. The indictment noted that federal government
regulations limited the quantity of cold medications containing pseudoephedrine
that an individual can purchase during a given time. Clerk’s Record USCA5 16.
On April 6, 2011, the government obtained a superseding indictment which added
the quantity of 500 grams or more of methamphetamine to the conspiracy count.
The indictment again noted that in order to control the misuse of pseudoephedrine,
the federal government regulated the quantity of over-the-counter cold medications
that an individual can purchase on one occasion or in a given period. It also
explained that commercial vendors who sell the medications must identify
2
purchasers and maintain records of the sales. Clerk’s Record USCA5 96. Under
these changed circumstances, the superseding indictment carried a 10 year
mandatory minimum sentence based on the quantity of methamphetamine alleged.
Clerk’s Record USCA5 99.
At trial, the government offered in evidence, as putative business records,
logs which the federal government and Texas state laws required to be kept by
Walmart, Walgreens, Target and CVS pharmacy purportedly for the purchase of
cold medicines containing pseudoephedrine. Clerk’s Record USCA5 106-107. The
government called no witness who created these log entries.
Towns filed a motion in limine seeking to exclude these records on the
grounds that they were not business records under Federal Rule of Evidence 803
(6) since they were calculated for use in court, not in the conduct business
functions. The motion cited Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527
(2009). Clerk’s Record USCA5 115-121. It further noted that the records were
required to be kept by Texas law for law enforcement purposes. See Texas Health
and Safety Code Annotated § 46.014. Clerk’s Record USCA5 116, Volume 4
USCA5 127-128.
“The Texas Attorney General has specifically held that these records are not collected for business purposes: ‘retailers are not, collecting the data for their own use….’ Texas Atty. Gen. Op. GA-0564, available at 2006 WL 2773877 (September 26, 2006). Rather, the record-keeping statute has a ‘law enforcement or governmental purpose’; the ‘sole purpose for collecting the information is to make it available to the Department of State Health
3
Services of the Department of Public Safety.1’ Id. Indeed, according to the Attorney General, it would be ‘a violation of the law’ for businesses to collect ‘the data for their own use.’ Id.
Pending Texas legislation makes the law-enforcement purpose behind the record-keeping requirements even more plain. Senate Bill 913, which passed the Senate on April 21, 2011, and is now before the House, will require retailers to transmit the required information to a ‘real-time logging system’ and makes clear that the records must be disclosed to the United States Drug Enforcement Administration and ‘other federal, state, and local law enforcement agencies.’ See Tex. S. B. No. 913 (April 21, 2011). Because the records are kept for a law-enforcement purpose and not a business purpose, they do not qualify as business records and cannot be admitted on that basis.” Clerk’s Record USCA5 116-117. [footnote added].
The government agreed that the records were kept under these provisions. Clerk’s
Record USCA5 138. The motion went on to note that even if the records were
admissible as business records, arguendo only, the records were further
inadmissible under the Confrontation Clause. Crawford v. Washington, 541 US 36,
54 (2004). Clerk’s Record USCA5 117 & 126.
“Although [d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status, that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2538 (2009).
“The Supreme Court’s observation in Crawford, 541 U.S. at 56, that, in general,
business records are not testimonial reflects nothing more than the reality that, in
general, such records are kept for business, not trial, purposes.” See Melendez-Diaz,
129 S.Ct. at 2539-40 (whether or not the reports qualify as business records,
1 The Department of Public Safety is the law enforcement agency for the State of Texas. Volume 3 USCA5 48.
4
statements prepared for trial were subject to confrontation); United States v.
Jackson, 636 F. 3d 687, 692 n. 2 (5th Cir. 2001). Clerk’s Record USCA5 118.
Counsel further noted that the records were kept under circumstances that would
lead an “objective witness reasonably to believe that the statement would be
available for use later at trial.” Melendez-Diaz, 129 S.Ct. at 2532. Towns also noted
that the records, here, were similar to those kept in Melendez-Diaz. Their purpose
was to give the information for use at trial just for the sole purpose of providing
evidence of the properties of the examined drug were for use at trial. Clerk’s Record
USCA5 118-119.
“Those who prepare the records are commanded by state law to do so, and are commanded by state law to turn them over to law-enforcement officials on request. Given the nature and purpose of Texas reporting requirements, an objective witness preparing pseudoephedrine logs would plainly anticipate that they will be used at trial.” Clerk’s Record USCA5 119.
Towns further pointed out that the records were testimonial because they did
precisely what a witness does on direct examination. See Jackson, 636 F. 3d at
696; Melendez-Diaz, 129 S.Ct. at 2532 (statements were testimonial because they
were the statements the witness ‘would be expected to provide if called to trial’).
Clerk’s Record USCA5 119 & 129. On each occasion when the records were
offered in evidence, counsel objected on the same basis. Volume 3, USCA5 113
and Volume 4, USCA5 133, 134-136, 139, 141-143, 145-146.
5
Towns had a right to confront this expected testimony. However, as counsel
pointed out on cross-examination of Texas Department of Public Safety
investigator Pieprzica2, no witnesses were available to ask when the sales were
made, who the people were that were involved in making purchases, who the clerk
was that made the record, and what information was gathered to make it. The
government offered no evidence that the clerks who made the records regarding
Towns’ purchases were unavailable to testify.
“Q. Yet, despite it is one set of rules, each pharmacy has their own way of keeping records? You discovered that in your investigation? A. Yes. Q. All right. So, if you don't talk to the person that actually made the sale, the investigation can develop real-really basic things like, did this person actually make this purchase, or is it just what shows up on the records? A. This is based on records. Q. Right. You never went and got a live witness that said, ‘Yeah, I made-I made that sale. This is the person that bought it. I checked the picture ID’? Investigation never developed the facts at that that level? A. In some of these cases, I mean, there was-this was a large investigation. Q. I understand. A There were some pharmacy employees who did tell me that certain individuals were coming in. As a matter fact, they quit selling to them because they were coming too often. Q. Exactly. Those are the type of facts, those details that you can develop by directly speaking to witnesses, right? A. Yes. Q. You can also walk into a pharmacy and see, check out to see if there is surveillance equipment that is being utilized- A. Yes. Q.-as a security measure? A lot of pharmacies do it? A. Yes. Q. And they are actually recording the transaction as this takes place?
2 Volume 3, USCA5 48.
6
A. I can't speak to that for the- Q. Well, you didn't look deeply enough into that issue, right? A. I didn't request that. Q. And so unless you determined whether pharmacy has a surveillance camera that is recorded these transactions, you wouldn't even know to ask for those recordings, right? A. It just wasn't part of the investigation. Q. You didn't consider that as part of this investigation to see, well, if a transaction for pseudoephedrine is taking place at 7:10 on August 31, why don't I just see if there is a surveillance recording of this? That could give me additional evidence? A. No, I didn't.” Volume 5, USCA5 266-268.
The court admitted these records and evidence over these objections. Clerk’s
Record USCA5 205-206 and Volume 2, USCA5 29-39.
Towns, thereafter, filed a motion for new trial (and the motion for
reconsideration of the same noting the Bullcoming3 case) on the grounds that these
records were improperly admitted as business records and violated Towns’ right to
confront the witnesses against him; noting the government's burden to prove their
admission was harmless. Clerk’s Record USCA5 214-221 & 227. U.S. v. Tirado-
Tirado, 563 F.3d 117, 126 (5th Cir. 2009).
In Bullcoming, the Supreme Court confirmed that “[a] document created
solely for an ‘evidentiary purpose,’… made in aid of a police investigation, ranks
as testimonial.” Bullcoming, at 2717. Noting that the defendant must be permitted
to confront the witness who made the observation or performed the analysis
recorded, the Supreme Court found that a corporate employee providing a records 3 Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).
7
affidavit was not an adequate surrogate to satisfy the confrontation clause.
Bullcoming, at 2708. Clerk’s Record USCA5 229.
“Similarly, Agent James Pieprzica, although also knowledgeable about the law governing the purchase of pseudoephedrine, was not a sufficient replacement for the pharmacy employees. Like the certifying corporate employees, Pieprzica could not convey what the actual sales employees knew or observed while performing each sale, nor could he expose and any lapses or lies on the part of the employees. Additionally, the Government did not assert that Pieprzica had any independent opinions concerning the alleged pseudoephedrine purchase of Towns: he had not seen pharmacy security videos of Towns purchasing pseudoephedrine or of the pharmacy employees checking the driver’s licenses of customers making accurate record entries. Allowing Pieprzica to provide surrogate testimony as to the pharmacy records was in error and does not satisfy Towns’ rights under the Confrontation Clause.” Clerk’s Record USCA5 230.
The court denied the motion for new trial and at sentencing opined that the 120
month mandatory minimum sentence was too high a sentence to impose on Towns.
Volume 7, USCA5 19. He inquired whether Towns qualified for the safety valve
reduction. Volume 7, USCA5 19. Thereafter, Towns met with the Assistant
United States Attorney and confirmed that his offense conduct was consistent with
that regarding which he testified at trial. A polygraph confirmed that he was
telling the truth. Volume 8, USCA5 463. But because Towns continued to assert
his innocence, the Court, finding its hands were tied, imposed a 120 month
sentence, believing it had no choice in the matter. Volume 8, USAC5 271-277.
“I agree that you can go to trial, you are found guilty, and then later try to get safety valve. But to do that, you can’t during the safety valve hearing plead continued innocence and not say that you know something about the crime that was committed.
8
And that's what your client did in the transcript, as I read it. He continues to maintain he is innocent of the charges in this case. ..I still continue to believe that a guideline sentence of 121 to 151 months is too high for what you did, but I am stuck with the statutory requirement that I sentence you to no less than ten years. And I have tried to help you by giving you the opportunity to do safety valve, but you have not met the requirements of safety valve, as I read the transcript and, accordingly, safety valve is inapplicable here.” Volume 8, USCA5 461-462 & 464.
This appeal followed.
SUMMARY OF THE ARGUMENT
Towns’ appeal raises and asserts that his Sixth Amendment right to
confrontation was violated by the admission (as putative business records) of
pseudoephedrine logs, which were prepared for law enforcement use, and the
denial of the “safety-valve” provision because of his claim of innocence.
ARGUMENT
ISSUE ONE RESTATED: The Court denied Towns his constitutional right to confront witnesses against him when admitting testimonial pseudoephedrine transaction logs as evidence. ISSUE TWO RESTATED: The Court abused its discretion when it admitted pseudoephedrine logs and summaries of them as business records. Issue One and Issue Two are argued together below.
“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right … to be confronted with
the witnesses against him.” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004). “Alleged violations of the Confrontation Clause are
9
reviewed de novo, but are subject to a harmless error analysis.” United States v.
Bell, 367 F.3d 452, 465 (5th Cir. 2004) (citing United States v. McCormick, 54
F.3d 214, 219 (5th Cir.1995)). The analysis necessary for this preserved
constitutional violation is a “separate and distinct consideration” from evidentiary
questions. See United States v. Jackson, 636 F.3d 687, 690 (5th Cir. 2011).
Therefore, for argument only, if the logs were “business records” for purposes of
the Federal Rules of Evidence, their admission can still be a constitutional
violation under the Confrontation Clause of the Sixth Amendment. See Id. at 696-
97 & n.2. Further “the government bears the burden of defeating [Towns’]
properly raised Confrontation Clause objection by establishing that its evidence is
nontestimonial.” Jackson, 636 F.3d at 695-696. The government failed to meet its
burden and the admission of pseudoephedrine logs constituted testimony against
Towns that was not subjected to cross-examination and therefore was a violation of
the Confrontation Clause of the Sixth Amendment.
“[T]he Confrontation Clause prohibits (1) testimonial out-of-court
statements; (2) made by a person who does not appear at trial; (3) received against
the accused; (4) to establish the truth of the matter asserted; (5) unless the declarant
is unavailable and the defendant had a prior opportunity to cross examine him.”
Jackson, 636 F.3d at 695 (5th Cir. 2011)(citing United States v. Gonzales, 436 F.3d
560, 576 (5th Cir. 2006)). The Government introduced pseudoephedrine logs
10
against Towns to prove the truth of the matter asserted: that Towns was, in fact, the
person purchasing pseudoephedrine at the location at the time listed on the log.
The unknown sources of this inculpatory information (the actual store clerks who
witnessed and documented the alleged activity) did not appear at trial, were not
shown to be unavailable for trial, and were not cross-examined at any time before
or during trial. The pseudoephedrine logs, being testimonial in nature, took the
place of accusatory in-court testimony of live witnesses. This prompts the
constitutional requirement of confrontation under the Sixth Amendment, and under
these circumstances Towns should have been afforded the right to utilize cross-
examination to confront the testimony used against him. See Id. at 695.
Much like the Supreme Court refused to create a “forensic evidence”
exception to the demands of the Confrontation Clause in Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2530, 174 L. Ed. 2d 314 (2009),
this Court should refuse to create an exemption for “legally compelled transaction
log evidence” for the same reasons: that the logs were “functionally identical” to
live in-court testimony, and were created for the primary and sole purpose of
documenting past events for investigation and use at trial. This places these records
within the “core class of testimonial statements” which are governed by the
Confrontation Clause of the Sixth Amendment. Crawford, 541 U.S. at 51-52;
Melendez-Diaz, 557 U.S. at 2531-32; Jackson, 636 F.3d at 696-97.
11
The pseudoephedrine logs served as the “functional equivalent” of “ex parte
in-court testimony” from numerous pharmacy employees who were excused from
testifying and from cross-examination, but whose accusatory statements were
admitted against Towns to prove that he was in fact the person who purchased the
pseudoephedrine which led to his conviction. See Melendez-Diaz, 557 U.S. at 2531
(quoting Crawford, 541 U.S. at 51); See also Jackson, 636 F.3d at 696. The
admission of “ex parte in-court testimony” such as this is the exact practice which
the Sixth Amendment was designed to prohibit and is explicitly named in
Crawford as being testimonial. Crawford, 541 U.S. at 51-52. The logs were used
to accomplish “precisely what a witness does on direct examination.” Davis v.
Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The
pseudoephedrine logs took the place of live witness testimony and thus their
reliability should have “be assessed in a particular manner: by testing in the
crucible of cross-examination.” See Crawford, 541 U.S. at 61.
The unnamed and unknown pharmacy employees created these logs under
circumstances which an objective witness would know was for the sole purpose of
law enforcement’s use at trial. “A document created solely for an ‘evidentiary
purpose,’ Melendez–Diaz clarified, made in aid of a police investigation, ranks as
testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610
(2011)(citing Melendez–Diaz, 557 U.S. at 2532). Davis explains that only the
12
primary purpose of a statement must be testimonial. Melendez-Diaz, 547 U.S. at
822 (statements are testimonial when there is no ongoing emergency and the
primary purpose is to “establish or prove past events potentially relevant to later
criminal prosecution”). The logs here documented past events and were not just
made for the primary evidentiary purpose but were made for the sole purpose of
aiding law enforcement in a police investigation, and were statutorily restricted to
only be given to law enforcement investigating a violation of controlled substance
laws. See 21 U.S.C. § 830(c)(2). Although other deterrent effects might be
extrapolated from these statutory requirements, even the non-objective law
enforcement witnesses here, admitted that Congress has demanded that pharmacies
create these logs for the primary purpose of documenting past events for use in
investigation and trial.
To rank as testimonial, statements must have a “primary purpose” of
establishing past events “potentially relevant to later criminal prosecution.”
[quoting Bullcoming v. New Mexico, 131 S.Ct. 2705, 2714 n.6 (2001)]. Citing a
case pre-Bullcoming, United States v. Mashek, 606 F.3d 922 (8th Cir. 2010), the
government argued below that pseudoephedrine logs were not of the same
character as the lab reports in Melendez-Diaz but were an objective catalog of
unambiguous factual matters. Clerk’s Record USCA5 138. It also noted that the
Supreme Court had denied certiorari in Mashek. Clerk’s Record USCA5 224.
13
Thereafter, Bullcoming, 131 S. Ct. 2705 (2011), was decided and clarified
that witnesses were not merely observing uncontested objective facts, but were
also vouching for the reliability and integrity of the information and the manner in
which it was determined. Thus, they could not serve as proper surrogates and
satisfy the Confrontation Clause. The bright line rule used in Mashek contradicts
the United States Supreme Court decision in Bullcoming and was decided using
plain error review since the error there was not preserved. United States v. Mashek,
606 F.3d 922, 930 (8th Cir. 2010) [Mashek did not raise a Confrontation Clause
challenge].
“Most witnesses, after all, testify to their observations of factual conditions or events, e.g. ‘the light was green,’ ‘the hour was noon.’ Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact. Bullcoming’s counsel posited the address above the front door of a house or the read-out of a radar gun….Could an officer other than the one who saw the number on the house or gun present the information in Court so long as that officer was equipped to testify about any technology, the observing officer deployed and the police department standard operating procedures? As our precedent makes plain, the answer is emphatically, ‘No.’” Bullcoming at 2715. Thus, the facts reflected in the logs kept for law enforcement use by
witnesses who were not called to testify observing persons’ identities and
purchases are not admissible by virtue of the records affidavit of a person who did
not observe and record these events.
14
The Court abused its discretion when it admitted pseudoephedrine logs and summaries of them as business records. “[W]hen a defendant properly objects to the admission of evidence, the
district court's decision to admit such evidence is reviewed for an abuse of
discretion.” U.S. v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997) (citing United States
v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994); Wilson v. Zapata Off–Shore Co.,
939 F.2d 260, 272 (5th Cir. 1991)). Towns properly objected to the evidence that
the government presented. See Volume 3, USCA5 113; Volume 4, USCA5 133-
136; Volume 4, USCA5 139, 141, 143, 145; Volume 5, USCA5 245, 248, 251 &
260. This abuse of discretion review is subject to harmless error review. United
States v. Jimenez Lopez, 873 F.2d 769, 771 (5th Cir.1989). “A trial court abuses its
discretion when its’ ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” United States v. Yanez Sosa, 513 F.3d 194,
200 (5th Cir.2008) (internal citations omitted).
THE PSEUDOEPHEDRINE LOGS ARE NOT BUSINESS RECORDS
During trial, the government built its case against Towns primarily through
the pseudoephedrine logs which allegedly showed multiple purchases of products
containing pseudoephedrine from multiple stores by Towns and were entered into
trial through the business records exception. Fed.R.Evid. 803(6). These logs are
required to be kept by pharmacies under 21 U.S.C. § 830, as was affirmed by the
government during trial. See Volume 3, USCA5 32. Texas law also provides for
15
these logs, specifically Texas Health and Safety Code § 486.014. Id. The Texas
Health and Safety Code provides greater discretion in the manner in which
recording of pseudoephedrine sales are recorded and form of identification can be
used by the purchaser. This is especially important as the government never
presented any evidence or testimony concerning what the business practices of the
pharmacies were, or how the information was recorded. This Court has not decided
upon the issue of whether these pseudoephedrine logs are business records, but
other cases concerning statutorily created documents persuade that these records
are not admissible as business records.
In Matthews, the court decided that records regarding the sale of sugar kept
pursuant to 26 U.S.C. § 2811 were not business records under the Federal Business
Records Act and that prejudicial error occurred when these documents reached the
jury. See Matthews v. United States, 217 F.2d 409, 411 (5th Cir. 1954). There, the
government introduced an IRS form which reported sugar sales which were in turn
used to enforce a tax on alcohol. The record had several columns of recorded
information labeled as follows: “Date Sold or Shipped,” “Quantity,” “Kind of
Substance (Brand),” “Name and Address of Person or Firm to Whom Sold or
Delivered,” “Auto Tag No.; R.R. Car No.,” “Driver’s Name and Address; No. of
Permit; Date it Expires.” See Id. at 412. The records “were required to be made by
16
certain dealers in sugar, malt, yeast and other articles normally used in the
manufacture of alcoholic beverages” per 26 U.S.C. § 2811. Id. at 413.
This Court determined that the sugar sale reports were not made in the
regular course of business as the seller did not make them “in furtherance of its
business in the buying and selling of merchandise.” Id. at 413. “So long as the
accuracy and reliability of records sought to be introduced in evidence have been
tested by the fact that a business concern carries on its own affairs from day to day
in reliance upon these records, there is no departure from the standards of accuracy
and trustworthiness that were basic in the historic rule permitting testimony from
the shop book or book of account.” Id. at 413-14. In applying this standard, the
records were found to have none of the “proofs of trustworthiness” as neither the
business nor the public looked to these records in conducting business with the
seller so the incentive for the business to reliably record the information was
lacking. See Id. at 414. Additionally, like the logs in the instant case, the records
were obtained “at the behest of [a government official] under sanction of Federal
statute.” Id.
Like Matthews, the records here require the pharmacy selling a product
containing pseudoephedrine to record the name of the product, the quantity sold,
the names and addresses of purchasers, and the dates and times of sales. See 21
U.S.C. § 830(e)(1)(A)(iii). The applicable Texas statute, as enacted during the time
17
of the alleged offense, only required the record of sale to include the name of the
person making the purchase, the date of the purchase, and the product and number
of grams purchased. See TX Health and Safety § 486.014(B)(2). There is no
information contained in these logs that a place of business would specifically use
for keeping track of sales from its inventory such as inventory codes, bar codes, lot
numbers, supplier information, or even price.
Were a store to use this information in many of the ways that a business
would, it would violate 21 U.S.C. § 830(c). This section provides that the
information obtained in the logs is confidential and “may not be disclosed to any
person”, except for the Attorney General or an “officer or employee of the United
States engaged in carrying out this subchapter, subchapter II of this chapter, or the
customs laws … when relevant in any investigation or proceeding for the
enforcement of this subchapter, subchapter II of this chapter, or the customs laws
… to a State or local official or employee in conjunction with the enforcement of
controlled substances laws or chemical control laws”. See 21 U.S.C. § 830(c)
(generally). As this information cannot be disclosed to any person, except to law
enforcement investigating violations of the Controlled Substances Act, the
business is prevented from using this record in many of the ways that they would
use other, similar, records in the course of their business in buying and selling
merchandise. This confidentiality requirement would also keep the public from
18
relying on these records in their business dealings with the business. As such, these
records lack the “proofs of trustworthiness” much like the records in Matthews.
Additionally, the reform of the applicable Texas statute in 2011 also shows
that the legislative intent behind the creation of these records was not to create a
new form of records for businesses to utilize for their profit-making endeavors, but
to create evidence for law enforcement investigations. See 2011 Tex. Sess. Law
Serv. Ch. 742 (H.B. 1137). The law in Texas, TX Health and Safety Code §
486.014, was instituted in 2005. See 2005 Tex. Sess. Law Serv. Ch. 282 (H.B. 164).
This statute required pharmacies to retain the pseudoephedrine logs for a period of
at least two years. See TX Health and Safety § 486.015. The 2011 act allowed for
the use of and created a real-time electronic database for these records to be
entered into. The information in this electronic database may only be disclosed to
the United States Drug Enforcement Administration or other federal, state, or local
law enforcement and may not be used for any other purpose. See TX Health and
Safety § 486.0146. Additionally, this act mandated that businesses that have been
using the electronic database for over two years shall destroy all paper records. See
TX Health and Safety § 486.015(c) (as provided for in 2011 Tex. Sess. Law Serv.
Ch. 742 (H.B. 1137)). These pseudoephedrine logs cannot be said to be a business
record that a business relies on if they are required to destroy these records after
they begin to transmit the same information to law enforcement in real-time.
19
In Ragano, the Court determined that certain corporate records did fulfill the
requirements of the business records exception. See United States v. Ragano, 520
F.2d 1191, 1200 (5th Cir. 1975). There, the government entered into evidence an
annual corporate report, a certificate of amendment to the articles of incorporation
for the corporation, and an application for a beverage license; which were filed
with the state of Florida and purported to list the directors, officers, and
shareholders of the corporation. See Id. This Court looked to the three factors set
out in Sabatino in coming to the determination that the records were business
records: “(1) the records must be kept pursuant to some routine procedure designed
to assure their accuracy, (2) they must be created for motives that would tend to
assure accuracy (preparation for litigation, for example, is not such a motive), and
(3) they must not themselves be mere cumulations of hearsay or uniformed
opinion.” United States v. Ragano, 520 F.2d at 1200 (citing Sabatino v. Curtiss
National Bank, 415 F.2d 632, 637 (5th Cir. 1969)).
Here, the pseudoephedrine logs are not documents concerning the inner
workings of a company and are not filed with a state entity that could test the
accuracy of the information contained within. The logs also fail to satisfy the three
factors set forth in Sabatino.
As is discussed below, despite the testimony and evidence presented at trial,
no information regarding whether the information in the logs was recorded
20
pursuant to a procedure to assure accuracy was provided. Additionally, there are
discrepancies between and within the United States Code and the Texas statute
regarding the information recorded in the logs. As such, the pseudoephedrine logs
do not fulfill the first factor, that they are kept pursuant to a procedure designed to
assure their accuracy. In regards to the second factor set forth in Sabatino, the
records here are kept for use in investigations of possible violations of the
Controlled Substances Act, not for the business related purposes of the pharmacies.
See 21 U.S.C. § 830(c).
In Veytia-Bravo, this Court determined that ATF form 4473 records,
memorializing firearm sales for a specific gun store who had gone out of business
by the time of trial, were business records under 803(6). See United States v.
Veytia-Bravo, 603 F.2d 1187, 1188 (5th Cir. 1979). In that case, the “ATF agent
who sponsored [the 4473’s] testified that the ATF currently had custody of the
[gun store’s] records, that the records presented were those prepared by [the gun
store], and that [the gun store] had compiled the records pursuant to the ATF
regulations. These regulations require a licensed munitions dealer as part of its
regular course of business to make a contemporaneous record of every sale of
firearms or ammunition.” Id. at 1192. The Court also found that the ATF
regulations required the gun store to record information about every sale it made of
firearms or ammunition and that the gun store relied upon these records to conduct
21
its own business affairs. See Id. at 1191. “Where circumstances indicate that the
records are trustworthy, the party seeking to introduce them does not have to
present the testimony of the party who kept the record or supervised its
preparation.” Id. at 1191-92.
In the instant case, the seller is not required to log all of their sales into the
pseudoephedrine log unlike the gun store in Veytia-Bravo. A pharmacy is only
required to log sales of products containing pseudoephedrine, and then it is not
required to log even all of those sales. The requirement that the seller log the sale
of a product containing pseudoephedrine “does not apply to any purchase by an
individual of a single sales package if that package contains not more than 60
milligrams of pseudoephedrine.” 21 U.S.C. § 830(e)(1)(A)(iii). Inasmuch, the
records here can hardly be said to be relied upon by the seller in conducting his
business activities when the log requires that only specific sales of one product
type which makes up only a segment of the total sales the business makes be
recorded. On the contrary, it is obvious that the statutorily required records here
require the seller to cease his normal activity to log the specific information that he
is obligated to do so.
As mentioned above, the records here are purportedly maintained by
pharmacies pursuant to 21 U.S.C. § 830 and TX Health and Safety Code §
486.014. At trial, the records were sponsored by Department of Public Safety
22
Trooper James Pieprzica (“Pieprzica”) who testified as to what he had learned
from computer generated files said to contain the information found in the logs
maintained by each pharmacy. Unlike the ATF agent’s attestation of the business
practices in Veytia-Bravo, Pieprzica stated at trial that he was unable to testify to
what happened when records of sales were recorded, other than to say that the
pharmacy clerks were required to check a buyer’s identification. See Volume 5,
USCA5 269. Pieprzica also testified that each pharmacy had its own way of
keeping its records. See Volume 5, USCA5 266. Since information regarding the
manner or practices used to record the information was not found in the logs or
even the trial testimony presented, the testimony of the party who kept the record
or supervised its preparation should have been required.
Additionally, the logs themselves make allegations against Towns. The logs
purport that Towns purchased a certain product at a certain time at a certain place.
The logs also list the amount of pseudoephedrine that Towns allegedly purchased
and this information makes the accusation that Towns violated the law. Such
blatantly accusatory evidence is testimonial in nature, therefore, the actual person
who recorded the information in the logs should have been required to testify so
that their statements could undergo the crucible of cross-examination.
23
THE BUSINESS DID NOTHING TO ASSURE THE TRUSTWORTHINESS AND RELIABILITY OF THE LOGS
BECAUSE THEY DO NOT RELY ON THE LOGS Whether evidence is admissible under Rule 803(6) is “chiefly a matter of
trustworthiness.” Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain,
659 F.2d 1314, 1319 (5th Cir. 1981). As explained above, both State and Federal
law require and set out requirements for the recording of information in the
pseudoephedrine logs. Federal law requires that the seller examine “an
identification card that provides a photograph and is issued by a State or the
Federal Government.” 21 U.S.C. § 830(e)(1)(A)(iv)(I)(aa). The Texas statute, as
enacted at the time, only requires the purchaser to “display a driver’s license or
other form of identification containing the person’s photograph and indicating that
the person is 16 years of age or older.” TX Health and Safety § 486.014(1)(A). As
no evidence was provided as to what identification each pharmacy required, it is
possible that non-governmental identifications were accepted, allowing the
purchaser to masquerade as any individual that they wished. Though only a
possibility, Pieprzica’s inability to confirm that any employee he encountered
could even possibly identify Towns as an individual to whom they sold products
containing pseudoephedrine, leaves too much wanting to be able to consider the
information in the logs to be reliable or trustworthy.
24
Additionally, under the Federal statute, either the seller or the purchaser may
enter the information into the log, provided the other party confirms the
information. See 21 U.S.C. § 830(e)(1)(A)(iv)(III). If the customer was allowed to
enter the information into the log and the seller failed to look or it was the regular
business practice of the seller to not verify the information, the information within
the log would be double hearsay, or hearsay within hearsay, as was the information
contained in purported business records in Ismoila. See United States v. Ismoila,
100 F.3d 380, 392 (5th Cir. 1996). In that case, records in which the original
information came directly from the customer were found to not satisfy the
requirements of 803(6). “[A]lthough Fed.R.Evid. 803(6) provides an exception for
one level of hearsay-that of the business documents themselves created by the
employee who recorded the cardholder’s statements-the sources of information
contained in the records were the cardholders, and their statements must fall within
another hearsay exception to be admissible.” Id.
Here, as mentioned above, Pieprzica was unable to testify as to what
happened when the information in the logs was recorded. See Volume 5, USCA5
269. He never testified that there was a single manner with which each pharmacy
recorded the information by or gave even the faintest illumination of what those
practices were. On the contrary, he testified that each pharmacy had its own way of
keeping the records. See Volume 5, USCA5 266. Pieprzico was unable to even
25
identify the clerks who made each sale, nor did he even visit each pharmacy. See
Volume 5, USCA5 265. Pieprzica failed to request the available surveillance
videos to ensure that the pharmacy clerks were checking for identification or
whether the accused individuals were in fact making the purchases. See Volume 5,
USCA5 267. He commented doing so wasn’t part of his investigation. See Id.
A similar situation was considered by the Court in Davis. In that case, the
government admitted into evidence a document, pertaining to whether a firearm
had entered into interstate commerce, which contained hearsay. United States v.
Davis, 571 F.2d 1354, 1358 (5th Cir. 1978). In making its determination that the
document did not fulfill the requirements of 803(6), the Court looked to the
statement of the custodian of records for the firearms manufacturer which
purported that the firearm had entered into interstate commerce. See Id. at 1358-59.
The statement of the custodian of records there was silent as to how the
information was recorded, whether it was in the manufacturer’s regular practice to
make such records, whether the records were kept in the course of a regularly
conducted business activity, and whether they were made at or near the time by, or
from information transmitted by, a person with knowledge. See Id. at 1359. Here,
the statements of the custodians of records are also silent as to how the information
was recorded or by whom it was recorded or when it was recorded. Neither could
Pieprzica, the sponsoring witness, shed any light on what the practice, manner, or
26
individual purportedly recording the information. The trial court was not given
even the most basic of information about whether the records complied with the
requirements of 803(6) or whether the “source of information or the method or
circumstances of preparation indicate[d] lack of trustworthiness.” See Fed. R.
Evid. 803(6).
In addition to the above, the proper predicate for 803(6) requires either the
custodian of records or a qualified witness to establish the authenticity of the
document held for the exception. See United States v. Iredia, 866 F.2d 114, 119-20
(5th Cir. 1989) (citing Coughlin v. Capital Cement Co., 571 F.2d 290, 307 (5th Cir.
1978)). “A qualified witness is one who can explain the record keeping system of
the organization and vouch that the requirements of Rule 803(6) are met.” United
States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008) (citing United States v. Iredia,
866 F.2d at 120). Here, neither the affidavits from the custodians of records nor
Pieprzica’s testimony explained the record keeping system of the organizations and
whether the requirements of 803(6) were met.
The pseudoephedrine logs admitted in the trial court do not meet the
requirements of 803(6). The logs are prevented, by the express terms of the
aforementioned statutes, from being used for any business purpose; the information
contained within is prohibited from being disclosed or being used for any practical
purpose other than providing evidence at trial. Since the businesses recording the
27
information do not rely on them for any reason related to the operation of the
business, the logs lack the intrinsic reliability and trustworthiness found in business
records. In addition, as the government failed to provide the trial court with the
necessary information to determine whether the logs had the reliability which is
required of a business record through testimony or evidence, the logs could not be
examined and properly considered to fulfill the requirements of 803(6) and the trial
court abused its discretion in admitting them. This abuse of discretion prejudiced
Towns as these records corroborated the testimony of his alleged coconspirators
and was a large portion of the government’s case.
WHEN THE PURPOSE OF A RECORD IS THE PRODUCTION OF EVIDENCE AT TRIAL, THEY MAY NOT BE ADMITTED UNDER THE
BUSINESS RECORD EXCEPTION
In Melendez-Diaz, the Supreme Court stated that “[d]ocuments kept in the
regular course of business may ordinarily be admitted at trial despite their hearsay
status. But that is not the case if the regularly conducted business activity is the
production of evidence for use at trial.” Melendez-Diaz v. Massachusetts, 557 U.S.
305, 129 S.Ct. 2527, 2538, 174 L.Ed.2d 314 (2009).
As described above, under Federal law, the information contained in the logs
is confidential and “may not be disclosed to any person”, except for the Attorney
General or an “officer or employee of the United States engaged in carrying out
this subchapter, subchapter II of this chapter, or the customs laws … when relevant
28
in any investigation or proceeding for the enforcement of this subchapter,
subchapter II of this chapter, or the customs laws … to a State or local official or
employee in conjunction with the enforcement of controlled substances laws or
chemical control laws”. See 21 U.S.C. § 830(c) (generally). Under the current
Texas statute, the information in this electronic database may only be disclosed to
the United States Drug Enforcement Administration or other federal, state, or local
law enforcement and may not be used for any other purpose. See TX Health and
Safety § 486.0146 (generally).
Even were this Court to determine the logs comply with the requirements of
803(6), arguendo only, it is clear that the only function of requiring this
information to be recorded is to produce evidence for use in trial. As such, the logs
were inadmissible at trial because their admission violated Towns’ confrontation
rights and caused him prejudice.
The trial testimony offered by the government in addition to the
psuedophedrine records came from Michael Sanders and Joey West. Michael
Sanders, a convicted felon and thirty year-long drug addict [Volume 5, USCA5
171] who was awaiting a reduced sentence from twenty years based on his
assistance in this case, testified that at some un-named time in the past he had been
given pills by Towns and that Towns had assisted him in some manner when
Sanders was cooking methamphetamine. Sanders neither recalled when this
29
occurred over the ten years (a period before that in the indictment) or more in
which he cooked methamphetamine, nor could he be certain that it had occurred.
Volume 5, USCA5 172-176. He testified that the chemicals in methamphetamine
were harmful to his mind. Volume 5, USCA5 204. He could not recall what he
had told investigators and what was reflected in their reports. Volume 5, USCA5
207.
"Did you ever sell methamphetamine to David Towns? A. Yes, sir. Q. Did he ever sell methamphetamine to you? A. Possibly a couple of times, maybe. I am not really--I mean, that has been a long time ago. Q. Okay. How long ago? A. That's probably been ten years ago or so." Volume 5, USCA5 175.
And, that Towns was sometimes on the land where Sanders made
methamphetamine while he was making it, Volume 5, USCA5 181, and drew
anhydrous off. Volume 5, USCA5 181. He also testified that Towns would
provide psuedophedrine. Volume 5, USCA5 186. Again, all without any time
reference.
He also recounted that he would cook it, Towns would watch him do it, but
he never actually saw Towns make it. Volume 5, USCA5 175. He further relayed
that Towns helped him, without specifying what it was he helped him
with. Volume 5, USCA5 176. He could not say that Towns ever manufactured
methamphetamine. Volume 5, USCA5 190.
30
In his first meeting with the government, Sanders denied that Towns was
anything other than a friend. Volume 5, USCA5 214. And he did not incriminate
him. Volume 5, USCA5 215. Sanders was told that he would not get help from the
government with his sentence if he did not implicate Towns. Id.
Joey West, the government's other witness, testified that he was assisting the
government with his testimony in order to receive a reduced sentence. Volume 5,
USCA5 221. He is a poly-drug abuser, having used cocaine, marijuana and
methamphetamine. Volume 5, USCA5 223. He learned how to cook
methamphetamine from Sanders six years prior to his testimony [Volume 5,
USCA5 224], and would cook it at a property in Gonzales, Texas owned by Mr.
Towns. Volume 5, USCA5 227. But he never cooked it when Mr. Towns was
there. While Mr. Towns was some times at the property when Sanders cooked
methamphetamine, he never saw them together. He saw Towns at the property
about 20 times but never conducted any methamphetamine business with
him. Volume 5, USCA5 228-229. He claimed that Towns brought him some pills
in exchange for some drugs, but he never saw Towns cook methamphetamine and
did not specify what drugs he traded to Towns on this occasion. Volume 5,
USCA5 229-230. He further testified that he never cooked methamphetamine in
front of Towns. Volume 5, USCA5 230. When he was on probation and promised
that he would not use or possess cocaine, he did not keep that promise and ended
31
up violating his probation. Volume 5, USCA5 241.
So, while Towns agreed he took “drugs” sold over-the-counter to stay alert,
he did not agree he did any methamphetamine manufacturing or assistance with
that for Sanders or West. Towns further testified that he did not agree with the log
records that he was purchasing so much of these over-the-counter drugs as they
listed. Volume 5, USCA5 358.
Towns testified that he sometimes used over-the-counter stimulants
including sinus medication to stay awake when he was long distance truck driving.
Volume 5, USCA5 343-345. He would keep boxes on hand for this purpose.
During voir dire, Towns' counsel inquired of the jurors if they would require
more evidence than just the word of a questionable informant to convict. They
replied in the affirmative, that they would need documentary evidence before they
relied upon the word of such witnesses. Volume 3, USCA5 73-82. Here, the
government's case was comprised of such unreliable evidence. In addition, the
government relied upon the inadmissible putative business records which also
violated Towns' right to confront the witnesses against him. Clearly, he was
prejudiced by this evidence.
ISSUE THREE RESTATED: The Court’s belief that it could not even consider a safety valve reduction for Towns was erroneous.
32
Title 21 U.S.C. § 841 (b)(viii) sets a statutory minimum of ten years in this
case.
“In the case of a violation of subsection (a) of this section involving … 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers … such person shall be sentenced to a term of imprisonment which may not be less than 10 years ….”
However, limitations on the applicability of the statutory mandatory
minimum sentence exist. One such limitation is contained in 18 U.S.C. § 3553 (f),
which provides:
“Notwithstanding any other provision of law, in the case of an offense under
section 401, 404 or 406 of the Controlled Substance Act (21 U.S.C. 841, 844, 846)
or section 1010 or 1013 of the Controlled Substances Import and Export Act (21
U.S.C. 960, 963), the Court shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing Commission under section 994 of
title 28 without regard to any statutory minimum sentence, if the Court finds
at sentencing, after the Government has been afforded the opportunity to make a
recommendation, that –
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess
a firearm or other dangerous weapon (or induce another participant to do so)
in connection with the offense;
33
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and was not
engaged in continuing criminal enterprise, as defined in section 408 of the
Controlled substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the Government is
already aware of the information shall not preclude a determination by the court
that the defendant has complied with this requirement.” (emphasis supplied).
Also, subsection (b)(11) of § 2D1.1 of the Sentencing Guidelines provides
for a decrease by two levels in the Sentencing Guideline range, if the defendant
meets similar criteria in § 5C1.2 of the Sentencing Guidelines. Section 2D1.1
(b)(11) provides for a reduction of 2 levels if the defendant meets the criteria set
forth in § 5C1.2:
NOT MORE THAN 1 CRIMINAL HISTORY POINT. Towns has no prior
record. Thus he has no criminal history points.
34
VIOLENCE OR POSSESSION OF FIREARM. Towns neither possessed a
weapon during this offense, nor did he make any threat of violence.
DEATH OR INJURY. Similarly, no death or serious bodily injury occurred
in this case.
LEADERSHIP ROLE. Towns was not an organizer, leader, manager or
supervisor in the offense. He provided the government all of the information that
he knew about the offense. Clerk’s Record USCA5 255-262. Since the government
threatened Towns with perjury of his debriefing. Towns obtained a polygraph. His
polygraph test results are evidence, which this Court should consider in making the
evaluation that the information he provided was truthful. See Polygraph test result
Clerk’s Record USCA5 268-269.
The trial court denied application of the safety valve to Towns because he
maintained his innocence and pleaded not guilty. Volume 8, USCA5 464. The
sentencing judge felt that he could not sentence Towns to the safety valve because
of this. The court specifically found that the ten-year mandatory minimum
sentence was excessive for Mr. Towns, but found that it had no other choice absent
some sort of post-conviction confession in Towns’ debriefing. Id. Thus, Towns’
argument boils down to whether a person who does not admit guilt, but truthfully
debriefs to the government, can qualify for the safety valve. The answer to this
35
question must be yes to remain consistent with the Towns’ right to substantive due
process, the right to put the Government to its proof.
None of the Safety Valve provisions require a guilty plea as a prerequisite.
See United States Sentencing Guidelines §§ 2D1.1 (b)(11), 5C1.2; 18 USC §
3553(f). A citizen’s right to assert his innocence necessitates this result. One can
neither find a person untruthful merely because they took the stand and testified at
trial, nor consider a defendant guilty simply because he does not speak post arrest.
See generally Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91
(1975)(silence after arrest cannot be used at trial when a defendant testifies). A
person, as Towns did here, may testify and put the Government to its proof, while
still having met the truthfulness criteria under the Safety Valve with respect to all
of the information which he provided to the Government concerning the offense.
In Garcia-Gil, this Court acknowledged that, a district court could “believe a
defendant’s protestations of innocence and find that he has told the prosecution all
he knows.” United States v. Garcia-Gil, 133 Fed. Appx. 102, 110 (5th Cir.
2005)(mem. op.)(citing United States v. Sherpa, 110 F.3d 656, 660 – 61 (9th Cir.
1996)). In United States v. Sherpa, the Ninth Circuit concluded that a defendant
could be found truthful cooperative with the government despite his attestations of
innocence contrary to the jury’s verdict. Sherpa, 110 F.3d at 660-61.
Furthermore, “the safety valve may be available to those who put the government
36
through a trial or wait until the last minute to disclose useful information.” United
States v. Hardman, Case No. 2:05 CR 20044-0, 2007 WL 4144929 *1 (W.D. La.
2007) (citing United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999)). The
safety valve should have been applied, reducing Towns’ sentence by two points to
a level 30 or lower. Such award of the safety valve would clear the way for
variance based on Towns’ military service, health problems or other factors.
Thus, the trial court’s rejection of the safety valve is legally flawed under a
de novo standard of review for two reasons. First, it was based on the flawed
assumption that Towns was not truthful for the sole reason that he contested his
guilt by going to trial. Second, a safety valve finding constitutes an independent
determination made by the sentencing judge, not something dictated entirely by the
Government’s estimation. United States v. Jeffers, 329 F.3d 94, 98 (2d Cir.
2003)(proper application of guideline is reviewed de novo). Other circuits have
acknowledged it is a “misconception” that a safety valve request can be denied
solely on the fact that a defendant went to trial. See United States v. Ramirez, 2006
Lexis 39724, at *25 (N.D. IA. 2006) (refusing to conduct an evidentiary hearing
and denying relief partially because the probation officer and the prosecutor both
informed the judge that going to trial cannot form the sole basis for denying the
safety valve).
37
The sentencing judge in this case plainly believed that he had no other
choice but to deny the safety valve:
“The Court: But doesn’t this lead to the ironic result that Congress, than [sic] has mandated a 120-month sentence in this case, so under your theory, someone can just continue to plead innocent, not provide any information of safety valve, and bust the minimum mandatory required by the statute? Mr. Villarreal: Well, only a person in David’s position would be able to do that, Your Honor. He said: Look, I can tell you about my prior drug use, my prior relationship with Michael Sanders, and I have already said what I know about the transactions that are charged in the indictment, but that is it. I have no other relevant or useful information to provide. . . . The Court: Mr. Towns, I have given you every opportunity for safety valve. I still continue to believe that a guideline sentence of 121 to 151 months is too high for what you did, but but I am stuck with a statutory requirement that I sentence you to no less than ten years . . . the safety valve is inapplicable here.” USCA 5 463 – 64.
This excerpt illustrates the judge’s expectation for a confession, an act of
contrition, or some semblance of acknowledgement from Towns that he is actually
guilty; however, the safety valve provisions impose no such requirement. United
States Sentencing Guidelines §§ 2D1.1 (b)(11), 5C1.2; 18 USC § 3553(f). Towns
need only debrief honestly, the guidelines do not require a confession of guilt. In
this fashion, Towns presents a case markedly different from this Court’s
dispensation in United States v. Rikihram, where district court did not err in
denying the safety valve in light of the defendant’s contradictory debriefing at
every stage of the proceedings against him. United States v. Rikhiram, Case No.
10-41233, 2011 WL 6003977 at *1 (5th Cir. December 1, 2011) (per curiam) (slip
38
op.). In contrast, Towns always maintained his innocence. The only basis for the
conclusion that he debriefed untruthfully stems the debriefing itself:
“U.S.A. Charlie Strauss: There’s really no sense in pursuing it further, Alfredo. I’m not trying to cut anybody off, but if he says he’s not guilty, I mean, the little deal that I read is ‘Truthfully provide to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct.’ I mean, his trial testimony was that he had no involvement in those offenses. Cynthia Orr: Uh-huh. Mr. Strauss: - - so I would say that that [sic] concludes it. I’m not trying to being [sic] unfair or - -“ See Clerk’s Record USCA5 260. Towns’ debriefing illustrates his acceptance of responsibility for conduct
taking place outside the times relevant in the indictment; he only asserted his
innocence with regard to the conduct alleged in the indictment. Because the law
cannot hold an individual culpable for actions a group of conspirators undertakes
prior to his entry into the conspiracy, Towns could truthfully assert his innocence
at the debriefing, as he did at trial. Levine v. United States, 383 U.S. 265, 266
(1966) (per curiam). Because the sentencing judge mischaracterized the entire
safety valve inquiry, improperly infringing upon Mr. Towns’ decision to assert his
innocence, plead not guilty, and go to trial, there is no question that the Trial
Court’s belief that it could not apply the safety valve was erroneous.
CONCLUSION AND PRAYER
For the foregoing reasons, this Honorable Court should reverse and remand
Towns’ conviction without the admission of records, which were not business
39
records and violates his right to confront witnesses against him. It should further
reverse and remand his case for a resentencing in which the Court decides whether,
in its discretion, it desires to assess the safety valve reduction.
Respectfully Submitted
CYNTHIA E. ORR Bar No. 15313350 GOLDSTEIN, GOLDSTEIN & HILLEY 310 S. St. Mary’s St. 29th Floor Tower Life Bldg. San Antonio, Texas 78205 210-226-1463 210-226-8367 facsimile E-mail: [email protected] By: ___/s/ Cynthia E. Orr______________ Cynthia E. Orr
ATTORNEY FOR APPELLANT, Melvin David Towns
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CERTIFICATE OF SERVICE
I hereby certify that on this the 28th day of February, 2012 a true and correct copy of the above Brief for Appellant has been served to: Joseph H. Gay, Jr. Assistant United States Attorney Chief Appellate Section 601 NW Loop 410, Ste. 600 San Antonio, Texas 78216 as registered participant to the CM/ECF filing system and via U.S. Mail, first class, in a postage paid and preaddressed envelope, upon notice from this Court for Appellant to file the paper copies. By: ___/s/ Cynthia E. Orr______________ Cynthia E. Orr
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FED. R. APP. P. WITH 5TH CIR. R. & IOP’S
FORM 6. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements and Type Style Requirements
1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because: x this brief contains 9633 number of words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because: x this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word in Times New Roman, 14 pt. By: ___/s/ Cynthia E. Orr______________ Cynthia E. Orr